New York prosecutors this week are expected to tell a judge how they think President-elect Donald Trump‘s already decided criminal case should proceed in light of his election victory.
Below is an explanation of the current status of the case, and the options prosecutors have.
WHERE DOES THE CASE STAND NOW?
Trump, 78, was convicted in May of falsifying business records to cover up a $130,000 hush money payment his former lawyer Michael Cohen made to porn star Stormy Daniels for her silence before the 2016 election about a sexual encounter she says she had with Trump, who denies it. The Republican former president had been scheduled to be sentenced on Nov. 26, but Justice Juan Merchan last week put all proceedings in the case on pause at the request of Manhattan District Attorney Alvin Bragg’s office.
The prosecutors had asked for more time to consider next steps in the case, citing the need to balance the “competing interests” between having the criminal case go forward as normal and protecting the office of the president. They are due to propose their next steps on Tuesday.
WHAT ARE PROSECUTORS’ OPTIONS?
Bragg is unlikely to aggressively seek to have Trump sentenced before the Jan. 20 inauguration, said Rebecca Roiphe, a former prosecutor with the Manhattan district attorney’s office.
“That would throw a grenade in an already highly charged political situation,” said Roiphe, now a professor at New York Law School.
Prosecutors may ask Merchan to delay the sentencing indefinitely, or propose delaying the implementation of any sentence until Trump exhausts all options for appeal, which could take years, Roiphe said.
Joshua Naftalis, a former federal prosecutor, said if Bragg seeks to go forward with the sentencing, he may not request that Trump be placed in custody or on probation, or receive any punishment that would restrict his liberty.
Prosecutors have the option of seeking a sentence of unconditional discharge – essentially, no punishment at all.
“They made it very clear they were not treating him any differently from a normal citizen – which was the correct posture,” said Naftalis, now a partner at law firm Pallas. “But the posture has changed now. He’s the president-elect.”
WHAT DO TRUMP’S LAWYERS SAY?
Trump has long called the case a politically motivated attempt by Bragg, a Democrat, to interfere with his campaign.
His defense lawyers have argued the case should be dismissed altogether, arguing that having it loom over him while he was president would cause “unconstitutional impediments” to his ability to govern.
It would be up to Merchan to decide what to do about the case, after considering arguments from both prosecutors and the defense. Trump’s lawyers would be expected to object to any decision short of a dismissal of the case, and would likely appeal any unfavorable decision by Merchan.
WHAT ABOUT PRESIDENTIAL IMMUNITY?
Trump’s lawyers had previously argued his conviction should be vacated and the charges dismissed because of the U.S. Supreme Court’s ruling in July that presidents cannot be prosecuted over their official acts, and that evidence of their official acts cannot be used in trials over personal behavior.
Bragg’s office argued that their case dealt with purely personal conduct. Merchan had been expected to rule on the defense’s bid on Nov. 12, but delayed making a decision after prosecutors asked for more time to weigh next steps. It is not clear when, or if, the judge will rule on whether presidential immunity applies to the case.